These days seem to be short on news on the competition front, as confirmed by several calls I have received from journalists asking whether we knew why nothing seems to be happening and when we expect something to happen. Well, no clue.
But what worries me the most about this apparent inactivity (a mirage in many ways, as I know for a fact that some Comp units are swamped) is that arguably there will certainly be less decisions to appeal. This is not news, but a clear tendency in our field as a result of less leniency (arguably related to the Damages directive?), more settlements, more commitments, etc. You may remember that I discussed all of this in a post titled “The diluted legality of competition law“.
That is worrying for many reasons (one of them being that the law should be driven by Courts, not political specialized agencies, who are primarily responsible for setting enforcement priorities), but today I’ll be selfish and underline the one that bothers me personally: it means that we are losing the most interesting, most legal and most fun part of this job, litigation.
Last week I made a joke about how I would work for free representing the supermodels targetted in a cartel probe [by the way, you should know that none of the supermodels who called me last week were interested in my work; it is frustating when people only judge one by the looks…;) ]
But last week I also intervened in hearings at the General Court (my colleagues also participated in a high-profile State aid one this Tuesday before the Grande Chambre of the ECJ) and I kept on thinking how I really would do that for free (Note for clients: please ignore this).
I’m particularly fortunate to be in a place where litigation is a great chunk of the work (I’m currently involved in more than 40 ongoing EU Court cases -admittedly many are joined- and in the past alone year intervened in, I think, 8 hearings) and there is nothing like it. Without a doubt, it is in Court, and drafting Court submissions where I’ve learnt the most. In fact, many of the best lawyers I know have significant litigation experience.
Inevitably, sometimes you win (this very same morning we entirely won 8 Joined cartel cases in which we represented the Commission before the General Court; since you won’t read the 116 page Judgment, here is the press release) and sometimes you lose. However frustating the defeat, I’ve thoroughly enjoyed every Court case in which I have worked. Some advice for young competition lawyers: when choosing a firm, make sure they are involved in many Court cases!
By the way, given the nowadays scarcer cartel appeals and the practical impossibility of succesfully appealing a merger decision (which I learnt the hard way), litigation is now likely to focus eminently on many state aid decisions and on a handful of abuse of dominance cases. Hopefully, the quite controversial addition of new judges to the General Court will imply a relaxation of the very strict rules of admissibility in State aid and a more thorough and detailed scrutiny of abuse of dominance decisions in which companies decide to trust Courts rather than conceding (on this latter question, see AG Wathelet’s “Commitment Decisions and the Paucirty of Precedent“).